Please raise your voice so that children can have theirs!

‘Child-inclusive mediation’ was previously known as ‘direct child consultation’, the term used in the UK College Policy and Practice Guide-lines 2002. This term was thought to deter parents and children from taking part – and possibly some mediators as well – by suggesting that the child consultant would seek to draw information from the child, rather than having a conversation with the child. Talking with children ‘should mean having conversations with them, not plying them with questions and extracting answers for the benefit of adults who ‘need to know’ ‘ (Parkinson, Family Mediation, 3rd ed. 2014, p. 205). On the other hand, child-inclusive mediation, the standard term in Australia, could be misunderstood as suggesting that children and parents may be seen together, with the child ‘seen and heard’ in the presence of both parents. Child-inclusive mediation needs to be understood as a highly skilled and multi-stranded process, not a one-off event. A carefully planned, structured and sensitively managed process should not consist of a brief meeting with a child with feedback given to the parents immediately afterwards, while the child anxiously awaits their reactions and travels home with one of them.

A rose by another name

The acronym CiM is generally pronounced SIM (cf the1980s pilot project, Solicitors in Mediation), whereas in Italy, CiM is pronounced ChiM. This sounds much nicer – more like Chum! Could the name and acronym be changed to ‘Children in Mediation – ChiM’?

What is the Family Mediation Council doing?

The FMC will shortly invite applications from trainers for FMC recognition of training courses in child-inclusive mediation that meet the standards put forward in May 2017 by the working group on child-inclusive mediation. This group, convened in an informal initiative taken up by the FMC, was formed of trainers in child-inclusive mediation from the College of Mediators, the FMA, NFM and Resolution. Four of these trainers were former members of the Voice of the Child Dispute Resolution Advisory Group’s Expert Forum. With the main goal to achieve action on the recommendations of the Voice of the Child Final Report (March 2015) and following 15 months of highly collaborative work, the group produced an introductory paper and four sets of recommendations on requirements for applicants for training (FMCA mediators with sufficient experience, full accreditation and PPC support), the length, content and delivery of this training, assessment of competencies in additional knowledge and skills, practice requirements, ppc and continuing professional development. The group’s recommendations were endorsed by the FMSB and FMC in June 2017 and circulated to FMC mediators. The FMSB has been charged with the task of designing a procedure to assess and recognise training courses in child-inclusive mediation, comprising a minimum of 40 hours in total, of which 21 hours (3-4 days) must comprise directly delivered training with assessment of competencies (but not requiring another portfolio!).

What will family mediators need to do?

Mediators trained in DCC/CiM prior to the new standards coming into force will need to attend a CiM Update Day on the new standards and developments. CiM Update Days for DCC/CiM trained mediators will need to be offered by trainers who have obtained FMC recognition for their 40 hour training programme (the new CiM training courses). To allow time for applications for CiM training recognition and review by assessors, unless informed otherwise by the FMC/FMSB, trainers are likely to be able to offer CiM Update Days from 1 September onwards. If recognition of their course is achieved by an earlier date, they will be able to offer Update Days from the date of their approval. The CiM Update Day will count towards the annual cpd requirement. CiM mediators who have completed the Update Day, or who have attended an FMC approved CiM course, will need to attend a CiM continuing training day at least every 3 years to share experience and extend expertise.

Mediators not qualified to provide child-inclusive mediation will need to attend a Child-inclusive Mediation Awareness Day to consider the pros and cons of children’s participation, to understand how it can be arranged in different ways, tailored to the needs of the particular family and child or young person (including younger siblings), obstacles to its take-up (such as cost) and benefits and difficulties reported by mediators and researchers, including feedback from parents and children themselves.

To comply with the additional section inserted in the FMC Code of Practice September 2016, FMC mediators have a responsibility to explain to parents and carers that ‘all children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during the Mediation, if they wish’ (FMC Code of Practice, s. 5.7.2). The working group recommended that the FMC Standards Framework Manual should be extended in line with the Code of Practice, to include mediators’ understanding of child-inclusive mediation and competencies in giving information to parents and carers, considering its suitability in particular circumstances and explaining the opportunities (offering a range of models adapted to the needs of the particular family and child/ren).

What more should be done so that the Voice of the Child can truly be heard?

In his speech at the Voice of the Child Conference in July 2014, the Rt Hon. Simon Hughes MP, Minister of State for Justice and Civil Liberties, asked ‘Why 10? It seems to me wrong that a child of 10 in England and Wales is deemed old enough to be criminally responsible, yet has no automatic voice in family proceedings when decisions are being made about them. Children and young people should be involved and be seen to be involved. And if a child younger than 10 years is able to express themselves and wishes to do so then they too should have that opportunity. Though of course we must also recognise that where a child or young person is too vulnerable and needs to have their views represented by others, this should also be the case’.

In the Government Response to the Final Report of the Voice of the Child Advisory Group, Simon Hughes proposed the adoption of ‘a non-legal presumption that all children and young people aged 10 and above should be offered the opportunity to have their voices heard during dispute resolution processes, including mediation, if they wish.’ But without Simon Hughes driving it forward, the Ministry of Justice has quietly shelved the proposal for a non-legal presumption, while the Legal Aid Agency seems unlikely to allow additional legal aid for child-inclusive mediation.

So, instead of this opportunity being made equally available to all parents and children wishing to take it up, it is restricted to those who can pay – yet another example of the gross inequalities in Britain today. Blinkered opposition based mainly on costs ignores indications in the UK and Australia that child-inclusive practice is more likely to reduce public expenditure than to increase it, through avoiding or reducing litigation over children. Research is needed, as the Voice of the Child Group recommended, to evaluate the cost-effectiveness of different models of child-inclusive mediation, not solely in financial terms but more importantly in easing the anger and distress of children who feel ignored by battling parents or drawn into taking sides. There is strong evidence that today’s worryingly high levels of mental ill-health among children and young people is associated, in some cases at least, with unresolved parental conflict. Childline has reported a 122% increase in children contacting them about their parents’ separation or divorce and a doubling of contact from children concerned about their parents’ drinking behaviour, often linked to family breakdown (Childline Review 2012/13).

The great majority of children and young people say they want to be listened to and have their needs and ideas taken into account, instead of being treated like parcels or possessions. Mediators should grasp the challenge to use our own voices more clearly and effectively to make parents and other family law professionals more aware of and responsive to the needs of young people, so that they can be far more routinely offered sensitively managed conversations in which they can express their own perspectives and concerns and, if they wish, request the mediator to share their messages with their parents. Many young people have the insight and maturity to contribute sound suggestions which both their parents find acceptable, without the child bearing the weight of decision-making or the brunt of repercussions. The Voice of the Child Advisory Group recognised that ‘only by working holistically towards a changed culture in family dispute resolution will the voices of children and young people be acknowledged as integral to any process that is designed to assist parents to resolve disputes and reach agreements’ (Final Report, par. 222).

So please spread the word to help parents and carers understand that children and young people may greatly appreciate the opportunity for a friendly conversation and if they turn it down, at least they won’t feel, when they are older (as many young people do) that they never had a chance to have a say!